Appeals against a Single Judge judgment awarding payment for 1200 mm pipes but denying additional dismantling work claims. The bench dismissed the appeals, upholding the award for pipes but leaving payment for extra work to civil courts.
Petitioner denied additional payment for dismantling work; award for 1200 mm pipes upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940
WA.No. 1873 of 2018
AGAINST THE JUDGMENT DATED 08.05.2018 IN WP(C).NO. 32319/2016
APPELLANT/RESPONDENTS IN WP(C):
BY ADV. GOVERNMENT PLEADER SRI.S.U.NAZER
RESPONDENT/PETITIONER IN W.P(C):
PAULSON CHACKO
A CATEGORY CONTRACTOR IN KERALA WATER AUTHORITY, MULAVARICKAL HOUSE, PIRAROOR, KALADY, ERNAKULAM DISTRICT-683574
BY ADV.SRI.C.S.AJITH PRAKASH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2018, ALONG WITH W.A.2052 OF 2018 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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WA.Nos. 1873 & 2052 of 2018
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940
WA.No. 2052 of 2018
AGAINST THE JUDGMENT DATED 08.05.2018 IN WP(C).NO. 32319/2016
APPELLANT/PETITIONER IN WP(C):
MR.PAULSON CHACKO A CATEGORY CONTRACTOR IN KERALA WATER AUTHORITY, MULAVARICKAL HOUSE, PIRAROOR, KALADY, ERNAKULAM DISTRICT.
BY ADVS.SRI.C.S.AJITH PRAKASH A.T.JOSE SRI.BIJITH S.KHAN SRI.PAUL C THOMAS SRI.T.K.DEVARAJAN SRI.UNNI NAIR
RESPONDENT/RESPONDENTS IN W.P(C):
1 THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT(UA), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE PROJECT DIRECTOR, KERALA SUSTAINABLE URBAN DEVELOPMENT PROJECT (KSUDP), GOVERNMENT OF KERALA, 5TH FLOOR, TRANS TOWERS VAZHUTHACAUD, THIRUVANANTHAPURAM-14.
BY GOVERNMENT PLEADER SRI.S.U.NAZER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2018, ALONG WITH W.A.1873/2018 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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WA.Nos. 1873 & 2052 of 2018
JUDGMENT
Hrishikesh Roy, C.J.
These two Writ Appeals arise out of the judgment dated 08.05.2018 in W.P. (C).No.32319 of 2016, whereby the learned Single Judge held that the petitioner contractor is entitled for payment towards 1200 mm MS pipes procured by him but rejected the other claim towards dismantling work, pointing it out as a disputed question of fact.
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07.05.2013 and it was completed on 31.03.2014. The Kerala Water Authority, which is the implementing agency, prepared a bill module. As payment was delayed the petitioner submitted Ext.P12 representation to the Secretary to Urban Affairs Department. By Ext.P13 minutes (11.12.2015), the Project Director KSUDP, disallowed payment towards certain items. The grievance of the petitioner is over the action of the Project Director in Ext.P13 in disallowing these payments for the work specified in clause 7(a) and 8 of Ext.P3 accepted schedule.
“7a: Dismantling the existing PSC pipe under the railway culvert and cleaning the railway culvert of all soil, sand etc for enabling the laying of MS casing pipe for HDPE pipeline, rate to include for all sundry works such as removing temporarily the existing concrete slabs of valve chambers, drains wherever necessary and re positioning the same after backfilling the newly laid pipeline.
8 : Item 8 is towards manufacturing, providing, transporting, rolling, lowering, laying & jointing, pushing through culvert, commissioning of ERW (Electric Resistance Welded)/ SAW (submerged Arc Welded) 1200mm MS pipe of 10 mm thick (FE-410 grade) conforming to IS 3589-2001 with latest amendment including perfect linking and welding of joints to correct position including cost and conveyance of pipes and materials with all lead and lift, etc, complete as per detailed specifications. With inside CM 1:1:5 lining or minimum 12mm thick and outside minimum 25 mm thick coating in CM 1:3 over 50x50 mm weld mesh of 13 guage, including loading and unloading pipes, including bailing out of water wherever necessary. The rates are inclusive of all taxes and duties. “
As against the aforesaid items the quantity, unit, rate as well as amount were also given. Against item 7a the quantity was 30; unit:m, rate:20000 and Amount: 600000.00. Against item 8, the quantity was 30; unit:m; rate:36000 and amount:1080000.
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WA.Nos. 1873 & 2052 of 2018
assessed the requirement of 1200 mm casing pipes, 700 mm DI pipe and 710 mm HDP pipe and other materials required for the work. It is his case that he procured 1200 mm dia casing pipe and brought the same to the work site, as it was found that 24 metres of casing pipe would be required to cross the railway culvert, as against 25 metres specified in the accepted schedule. 60% of its cost was paid to him.
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for this purpose he had purchased the same. It was only after inspection conducted by the authorities that the petitioner was asked to lay casing pipe of 800 mm. Therefore he claims that he is entitled for payment towards procurement of 1200mm casing pipe.
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and therefore, payment is permissible only for the actual quantity of the work executed, measured and recorded.
the learned Single Judge concluded as follows:
“.................................................................................
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on 11.12.2015 as can be seen from Ext.P13 minutes, disallowed the payment for the casing pipe of 1200 mm as per clause 1.1 scope of work in sec.B and work requirement which read as follows:
(j) The actual requirement of 1200 MS pipe to be used as casing pipe will have to be assessed by the contractor after finalizing the plan of railway crossing. The existing crossing, has to be identified after removal of silt, mud from the existing culvert and cleaning the vegetation nearby.
(k) The required size, degree and number of specials will have to be reconfirmed by the contractor after finalizing the alignment In consultation with the Engineer and got approved by the Employer, The quantities jn the BOQ are only indicative.
“Then Secretary asked the opinion of APM; PM, PIU and DPD (Infra). All of them were Of the opinion that since the contractor has procured the 1200 MS casing pipe as per BQQ item, this may be admitted and payment can be made to contractor. Also it was not the mistake of the contractor but that of the consultants who, prepared and scrutinized the DPR. The responsibility of the contractor is limited to ascertaining the length of the pipes and not the size of the pipes. The contractor could not change the size of the pipes as the '"work is that of replacing the old pipe line.
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There is no clause in the contract that prevents the payment to the contractor against the supply of 1200 m MS pipes Additional Project, Manager and Project Manager pointed out further that such payments were made to the contractor in a similar case under the contract KCH-WS-02A”.
of the pipes, the learned Single Judge found the following in paragraph 19 :
“....................................................................................... 19. At the same time regarding the dismantling work in item 7(a), even though the quantity is mentioned as 30 m, in the accepted schedule, and there is a certificate Ext.P9, the respondents are disputing the same regarding the nature of work carried out. There is no specification regarding the requirement of dismantling in Ext.P3. What is stated is dismantling of existing PSC pipe under the railway culvert and cleaning the railway culvert of all soil, sand etc. for enabling laying of the MS casing pipe for HDPE pipe line. It is also stated that the rate would include for all sundry works like removing temporarily the existing concrete slabs of valve chambers, drains wherever necessary and repositioning the same after backfilling the newly laid pipeline. It is an admitted fact that dismantling became necessary not only under the railway culvert but certain other places also. Petitioner has relied on Ext.P9 certificate in which the Engineers who were in charge stated that alignment of newly laid 700 mm DI pipe line at the east end of Mattancherry bridge and at Bristow road is in the same alignment of the existing 700 mm premo pipe. The petitioner is claiming payment for the said dismantling on the basis of Ext.P9 certificate in which the Engineers under the respondents found that the additional works the contractor has done is similar to item 7(a). Regarding item no.7(a) Ext.P13 states that when an additional item of work has to be executed the Project Manager has to assess whether the nature of the
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work is corresponding to any of the items in the BoQ and whether the rate can be applied to the additional item also. Even though in Ext.P13 it was decided to apply the same rate after getting a certificate from the Additional Project Manager, the Additional Project Officer has not issued such a certificate apparently disputing the nature of work, despite the certificate Ext.P9. When there is a dispute with respect to the nature of work carried out Ext.P9 certificate alone will not be sufficient for this court to exercise its jurisdiction under Article 226 of the constitution of India, for directing payment. …......................................................................................”
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done by him.
costs.
Sd/-
HRISHIKESH ROY CHIEF JUSTICE
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE
mns
3 issues framed by the court
Whether the contractor is entitled to payment for 1200 mm MS pipes procured before site inspection alleged mis-approval by consultants.
Whether the contractor is entitled to payment for additional dismantling work exceeding the quantity specified in the bill of quantities.
Whether the Single Judge's findings regarding contractor liability for pipe size specifications require interference.
Paulson Chacko
Secretary to Government Local Self Government Department
Hrishikesh Roy
A.K.Jayasankaran Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
